Analysis: How India's police and judiciary fail rape victims

Commuters wait to get on a bus at the stop where police say a 23-year-old woman boarded and was subsequently raped by six people while the vehicle was moving on December 16, 2012, in New Delhi January 10, 2013.
REUTERS/Mansi Thapliyal

By Nita Bhalla

NEW DELHI (TrustLaw) - For decades, rape victims in India have endured an archaic, poorly funded, under-resourced and insensitive criminal justice system which has failed both to care for them medically and to deliver justice, human rights groups and lawyers say.

The 24,206 rapes reported in 2011 by the National Crime Records Bureau (NCRB) is the equivalent of one rape every 20 minutes, but even that is thought to be a minority of the number of such attacks across the country.

Indian police estimate only 4 out of 10 rapes are reported, largely because of the deep-rooted conservatism of Indian society, in which many victims are scared to come forward for fear of being "shamed" by their family and community.

Those brave enough to go to the police face numerous challenges in getting their attacker put behind bars -- reporting the rape to hostile police, unsympathetic forensic examinations, a lack of counselling, shoddy police investigations and weak prosecutions in the courts.

The number of courts, judges and prosecutors is grossly inadequate, leading to trials that last years, intimidation of victims and witnesses, and the dropping of many cases before judgment.

"One part of the problem is certainly attitudes. A lot of government officials, especially police, allow negative and damaging stereotypes of rape survivors being promiscuous to interfere with their duties," says Aruna Kashyap, women's rights researcher for Human Rights Watch.

"So when a rape survivor comes forward and tries to make a complaint at the police station, they often face hostility or scepticism about what they have experienced."

Last month, a 17-year-old village girl was drugged and gang-raped by at least two men in a field in the northern Punjab region. The police allegedly failed to take her complaint seriously and the victim ended up killing herself.

This, unfortunately, is not an exception.

Disillusionment with the authorities, and the shame Indian society often attaches to women who have been raped, has led many rape victims to commit suicide, drinking pesticide, dousing themselves in kerosene and setting themselves alight, or slashing their wrists.

"BLAME THE VICTIM"

Senior political and religious leaders have shown this "blame the victim" mentality towards rape on several occasions since the Delhi gang rape, and police often follow suit.

An investigation by India's Tehelka magazine with NDTV news channel in April last year found more than half the police officers interviewed had prejudices -- blaming the victim's clothes or the fact that she was out at night, suggesting that she was "asking for it".

"The entire police force is not gender insensitive, but training and sensitisation is definitely needed," a senior Delhi police official, who did not want to be named, told TrustLaw.

"In the police, an average constable does not meet a woman very often. You meet your colleagues, they are men. You pick up accused, most are men. You take them to court, most of them are men. You bring them to jail, most are men. So a constable's interaction with a woman on a daily basis is very low."

Currently, women make up around 6.5 percent of India's police force, according to the latest NCRB data.

For a rape victim, lodging a First Information Report, or FIR, with the police is just the first hurdle. The procedures that follow are often even more gruelling, humiliating and traumatic for the victim.

"RE-RAPED"

New Delhi has Rape Crisis Intervention Centres, but outside the capital, India has no formal system in place for the medical or psychological support of victims, say lawyers.

An over-burdened public health system -- where the average gynaecologist has no training in conducting medical examinations and is often reluctant to do so for fear of being embroiled in criminal cases -- mean victims get little sympathy.

A 2010 Human Rights Watch report called "Dignity on Trial" cited cases where victims were made to go from one government hospital to another for medical examinations, or subjected to many uncomfortable tests.

Others have been forced to sit for hours in bloodied clothes, even after an examination, without being allowed to change or shower. Some are publicly identified as "rape victims" in hospital corridors.

There is often no medical care available such as treatment for injuries or infections, or to address the possibility the victim has contracted HIV/AIDS or become pregnant. In most cases, no trauma counselling is given.

Lawyers defending victims also point out that even forensic examinations can be problematic.

The so-called "Two finger test" -- an archaic practice, banned in many countries, which involves a doctor inserting fingers into a victim's vagina to determine if she is "habituated to sex" -- is widely used in India, despite an order by the Director General of Health Services in 2011 to discontinue it.

The test is irrelevant and unscientific, say some lawyers, adding that it amounts to the "re-rape" of the victim.

The World Health Organisation's guidelines for medico-legal care for sexual assault victims state that the health and welfare of the victim is "the overriding priority" -- yet this is rarely followed in India.

BOTCHED INVESTIGATIONS, FEW CONVICTIONS

The collection, transport and storage of forensic evidence by police -- a key component in rape cases -- is also often poorly conducted, resulting in weak prosecutions, few convictions and lenient jail terms for convicted offenders.

Around 26 percent of rape cases tried in court in 2011 resulted in convictions, according to the NCRB.

"Indian investigative mechanisms are really, really shoddy and very basic investigations are often botched up. A crime scene is very rarely protected, investigators don't know how to collect simple evidence like samples, photographs, fingerprints - and these are just the basics," says Rebecca Mammen John, a supreme court lawyer who has represented many rape victims.

"And if you botch this up what is it you want to give to a court? You can't blame the courts for low convictions. After all, the court is not an eyewitness. The police have to offer them something to proceed on."

An August 2012 study of 40 rape cases tried by district courts in Delhi that resulted in acquittals, found that more than half the acquittals were due to police failure to perform adequate investigations.

The study, by the Delhi-based charity Shakti Vahini, cited judges' criticisms of investigating officers for not collecting evidence like phone call details, not tracing and seizing the vehicle where the rape occurred or finding witnesses to support the victim's claims.

"This … leads to the popular perception that guilty persons can get away with crimes unharmed, thus there is no fear of execution," said the study.

"In this scenario ... making the police more accountable for their actions/inaction and setting high standards for investigation using world class scientific methods is the need of the hour."

JUSTICE DELAYED, JUSTICE DENIED

One of the biggest obstacles to winning justice for rape victims is the length of the trials, legal experts say. In an average case, it can take a court five to 10 years to reach judgment.

India has far too few courts, judges and prosecutors for its 1.2 billion people. It has one fifth of the number of judges per capita that the United States has, and there is a backlog of millions of cases.

This means that cases are often dropped, and the accused acquitted, long before all the evidence is heard and a judgment given.

The victims often become tired and disillusioned, unable to spend the time and money required to attend the court hearings, and some just want to get on with their lives.

Lawyers say victims and their witnesses are sometimes intimidated during lengthy trials by the accused who are, in some cases, granted bail by the court, although rape is a non-bailable offence.

As a result, victims can be pressured into accepting illegal "out-of-court" settlements such as a small cash payment. In more extreme instances, the victim's family is pressurised into marrying their daughter to the accused.

There is no witness protection programme in India.

"It takes a very brave person to be a witness in our country because you have to keep coming to court, you have to face hostile cross examination, and you are made to feel like this foolish perpetrator rather than the victim of a crime," says lawyer Rebecca Mammen John.

"Eventually, you end up asking yourself 'Why the hell did I bother?'"

(TrustLaw is a global centre for free legal assistance and anti-corruption news run by the Thomson Reuters Foundation. For more TrustLaw stories, visit www.trust.org/trustlaw)

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